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Washington Update: Same plan, same regulatory hurdles

September 1, 2011

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OSHA’s latest regulatory agenda, released July 7, offers many of the same promises agency officials have issued before.

Several rules being pursued seem to be more or less on track, including final rules for confined spaces in construction (scheduled for publication in November), two whistleblower protection revisions (November) and a cooperative agreements revision (September).

But as is common with promulgating new standards, the rulemaking process for many rules on the agenda are delayed to various degrees. During a July 11 webchat with OSHA staff, officials attempted to address why some of the rules – many of which are among the highest priority at OSHA – are experiencing setbacks.

A Small Business Regulatory Enforcement Fairness Act panel review of the injury and illness prevention program rule – OSHA administrator David Michaels’ “top priority” – has been delayed. This review process, slated to begin in June, has been put on hold so more stakeholders can provide input and the agency has time to conduct economic and feasibility analyses.

During the webchat, OSHA officials said the SBREFA process for the highly anticipated rule would begin “shortly.” Although a draft of the rule is not available and the age­ncy has not decided on the rule’s parameters, OSHA staff dropped a few hints on what could be expected, including:

  • The agency hopes an injury and illness prevention program rule will be “consistent” with consensus standards such as ANSI Z10. However, OSHA would be “simplifying” the requirements to make implementation easier for a range of businesses. (Small businesses were specifically mentioned.)
  • Safety Management System requirements are being taken into consideration.
  • The federal rule may include the best components of similar state programs. At least 15 State Plan states have safety and health program requirements, and other states have incentives through workers’ compensation programs for companies to implement programs. OSHA will look to them to see what aspects are effective when developing its rule.
  • Accompanying the rule will be compliance assistance materials, such as model programs, hazard identification tools and program evaluation tools.

The combustible dust standard is another long-awaited rulemaking, and it saw perhaps the most significant delay toward promulgation in the latest regulatory agenda. Its SBREFA process was scheduled for April, but is not set to begin until December. OSHA staff said the panel review was pushed back so the agency could hold an “expert forum” that would better prepare OSHA for the review.

“Combustible dust is a very complex issue, given the wide breadth of potential dusts and process that might be covered by an OSHA standard and the potential impact on the small facilities,” agency staff said in the webchat. The scope of the rule has not been decided.

OSHA failed to publish a proposed rule updating the silica standard in April, representing the latest of several delays the rule has undergone. When Safety+Health went to press, the rule was undergoing a review by the Office of Management and Budget. Despite the delays, OSHA intends to move forward with the rule – which has been in the works since at least 2003.

“The silica rulemaking is a scientifically complex effort that potentially affects a large number of workers and employers,” OSHA said in response to questions on the rule’s numerous publication delays. “Although publication of the proposed rule is taking longer than expected, OSHA continues to work diligently with OMB and is confident that the proposed rule will be published soon.”

Publishing a final rule on the hazard communication standard, which would align the OSHA rule with the Globally Harmonized System of Classification and Labelling of Chemicals, was delayed from August to September due to an “extensive review.” Even with the delay, OSHA officials said companies that choose to classify products according to GHS may do so, provided they also follow the current hazcom standard and the chemical is properly classified. Once published, the rule may have an implementation period of three to 15 years, based on stakeholder recommendations.

Washington-based Public Citizen called out OSHA on the prolonged regulatory process, claiming in a press release that the agency has “dragged its feet” on the peer review of the beryllium standard. The study originally was scheduled for completion in May, but the latest regulatory agenda bumped that to June.  An OSHA spokesperson told Safety+Health the delay was due to the “complexity of the rulemaking process and competing goals of the agency,” but stressed that other aspects of the rulemaking were moving forward.

The opinions expressed in "Washington Update" do not necessarily reflect those of the National Safety Council or affiliated local Chapters.  

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